For that time of year when the younger set is heading back to class, your Appellate Success correspondent brings you a few of the most memorable ideas I’ve been taught over the years about (what else?) appellate success!
- “No One Wants to Read What We Write.” Credit to Angelo DeSantis at the Univ. of Calif. at Davis for this humbling reminder that evaluating appellate and trial court briefs is hard work, being done by government employees who get paid the same no matter how closely they read our material, and they have a stack to get to after ours. Punchy, short and simple will get through. Repetitive, vague or florid loses the reader.
- “A Good Way to Improve Your Chances of Losing is to Overclaim the Strength of Your Case.” In his classic article The Wrong Stuff, Ninth Circuit Judge Alex Kozinski offered a parade of lowlights from his judicial career, sardonically aimed to teach readers how to lose an appeal. Going to what I think is the very core of persuasion, he reminds us not to oversell: “By the time a case gets up on appeal, there is usually some vitality to each side’s position,” and it’s always better to explain why weaknesses don’t matter than to
- “Most Trials We See Are Not ‘A’ or Even ‘A-’; they’re ‘B-’ Trials. But There’s Still No Reversible Error.” A veteran San Francisco appellate justice said this at a seminar I attended 10 years ago, and I’ve confirmed it with many other justices since. My experience in reading trial records is the same. Errors happen; even hard-working judges are doing too much all at once to get everything just right. Because California law forbids reversal on appeal absent a showing that claimed errors likely prejudiced the outcome, preparing to show such prejudice is essential to your appellate strategy -- before, during and after trial.
- The practical message: It’s crucial to think about our work from the other side of the bench. To be most effective, appellate advocacy must account for the perspective of its consumers, who decide the outcome.